Friday, June 2, 2017

Venlafaxine Section 8 Decision Reaffirmed on Remand

Teva Canada Ltd v Pfizer Canada Inc 2017 FC 526 Zinn J on remand from 2016 FCA 161 (here, here) var’g 2014 FC 248 (here) and subsequent reasons re pre-judgment interest 2014 FC 634 (here)
            1,248,540 / 2,199,778 / venlafaxine / EFFEXOR XR / NOC s 8 / Venlafaxine s8 FCA

In this s 8 action, Zinn J at trial awarded Teva $105 million in s 8 damages and pre-judgment interest: 2014 FC 248, discussed here (and see FCA [2] specifying the quantum.) On appeal, the FCA held that some key findings by Zinn J were based on inadmissible hearsay evidence: see here. The FCA consequently set aside the decision and remitted it to the FC for redetermination. In this decision on remand, Zinn J has reaffirmed his original decision. Because the remand was for evidentiary reasons, Zinn J’s redetermination turned on the facts and the evidence.

There are two evidentiary points of interest. First, on remand, Wyeth (now Pfizer), argued that much other evidence in the record was also hearsay and inadmissible, and should therefore be excluded, even though no such objection had been made at first instance [32]. After a review of the authorities, Zinn J rejected this argument, and held that he would not entertain any new objection to admissibility [41]. This holding was supported by the observation that, had Wyeth objected at trial, Ratiopharm (now Teva) would have had an opportunity to address the deficiency with other evidence, which was no longer possible on remand [37]. As I am not an expert on evidence law, so I won’t go into this issue in detail, except to say that Zinn J’s holding appears on its face to be logical and supported by the authorities he relied on.

A second point of some general interest is that Zinn J held that when it comes to establishing the capacity of a generic to satisfy the market:

[76] [I]f a section 8 plaintiff can point to a supply agreement with a third party that provides for the supply of the pharmaceutical at issue in the amounts required to fill the generic market in the but-for world then, in the absence of any contrary evidence, it must be found that the plaintiff has proven its loss on the balance of probabilities.

His finding on this issue did not, however, turn on this point alone, as he also found that there were a variety of reasons to conclude that the particular supplier in question in this case would have been able to perform the contract.

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